SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 0412

- 18T3 CHRISTINE DALENA, Plaint iff

- Respondent,

v. DANIEL T. DALENA, Defendant

- Appellant.

________________________

Submitted September 30, 2020

– Decided Before Judges Fisher and Moynihan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM

- 19

- 00 71

- 12.
Dan i el T. Dalena, appellant pro se. Laufer, Dalena, Jensen & Bradley, LLC, attorneys for respondent (Michelle A. Benedek, of counsel and on the brief , William M. Laufer, on the brief ).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited

. R

. 1:36

- 3.

October 13 , 20202 A

- 0412

- 18T3

In this post

-

judgment matrimonial matter, defendant Daniel D a lena appeals from a final order and other interlocutory orders that collectively awarded plaintiff Christine Dalena reimbursement of, among other things, college tuition expenses for the parties' three children

. Daniel contends the trial judge misconstru e d the emancipation and college expenses provision s in the parties' property settlement agreement (PSA) , a s well as in entering the orders that compelled his payment of counsel, mediation and late fees. We find no merit in any of his arguments and affirm. The parties to this matrimonial action are both attorneys. They married in 1989 and had three children : Matthew, Brielle, and Justin , who were born in 1991, 1993, and 1998, respectively. The p arties separated around 200 2 , and the children continued to l ive with Christine in the marital home. Christine filed a complaint for divorce in 2011; Daniel filed a counterclaim seeking the same relief. They resolved all their existing differences, and a dual judgment of divorce, which incorporated the PSA , was

en t ered on January 30, 2013.
T he PSA stipulated that the parties both waived alimony and that Christine would be the primary custodian of the children, who were then twenty

- one, nineteen, and fourt een . Of particular interest here is the parties ' stipulatio n that3 A

- 0412

- 18T3

emancipation would result from the first of six events: (1) a child's death; (2) a child's marriage; (3) the child's graduation from high school and reaching the age of eighteen "or the co mpletion of four . . . continuous academic years of college o r vocational education or other post

- high school education, which shall commence within six months from graduation of high school, whichever last occurs"; (4) the child's entry into the military; (5) the "termination of education or engaging in full

- time e mployment or upon and after the obtaining by the child of eighteen . . . years of age" 1 ; and (6) any other circumstance acknowledged by law. The third and fifth subsections are implicated here. The PSA also addressed college costs and selection , requirin g unemancipated children to

apply for any financial aid and scholarships that may be available to help defray the costs of their attendance at college [and] to apply for student loans for 2 of their 4 years at college (not to exceed $10,000.00 per child in the aggregate) so that all children are treated fairly. After the deduction of financial aid, student loans, and scholarships, both Christine and Daniel agreed " to be equally (50/50) responsi ble for the net college educational costs of the minor children

. " They also stipulated "[t] he

1 The PSA limits the impact of a child's "partial employment" i n sp ecific ways not relevant to our disposition of this appeal.4 A

- 0412

- 18T3

choice of where the child [] shall attend college " would be agreed upon by both parents and the child, and that such " consent shall not be unreasonably withheld, so as to ascertain the reasonableness of the costs thereof and t he appropriateness of said curriculum. " Of interest as well is the PSA's provision that all the support provisions

" are non - modifiable regardless of any change in circumstances ," and the parties stipulated they had " considered all foreseeable and unforese e able events occurring to either of them in accepting these provisions ." The parties moved and cross

- moved numerous times about child

- related issues between 2013 and 2017 , resulting in th e entry of numerous orders. Issues that could not be resolved on th e papers were developed during a three

- day evidentiary hearing in July 2018 , and the following month the judge entered an order resol ving all remaining issues. Daniel appeals, arguing t hat the judge erred: (1) in imposing on him certain costs arising f

r om Matthew's education ; (2) in failing to consider Brielle emancipated on an earlier date; (3) in finding the costs of Justin's attendance at Muhlenberg University to be reasonable ; (4) i n awarding Christine $3000 in attorneys' fees ; (5) in requiring Dani e l's payment of certain health insurance costs that he claims were undocumented; (6) in imposing penalties for Daniel's5 A

- 0412

- 18T3

late payments; (7) in adjusting Daniel's share of the mediation cost s ; and (8) "in more than doubling the judgment th[r]ough QDRO

. " 2 We find insufficient merit
in the last f

ive of these issues to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E). And, f or the reasons that follow, w e reject the first three issues , in which Daniel challenges the relief granted to Christine arisi n g from her bearing of certain college expenses for all three children

. Matthew

. The record reveals that Matthew started his college education in the south in 2009

. After one semest er, Matthew transferred to a New Jersey college, and then transferred fo r the start of his sophomore year to the University of Maryland , which he attended without interruption through his fourth year. In 2013, d uring Matthew's fourth year (his third at th e University of Maryland) , the parties entered into the PSA. A round the same time, Matthew was advised by the University of Maryland that although the credits he earned at the schools he

2 In the eighth point, Daniel claims that while the trial judge ascertained that he was obligated to Christine for all the items i n question in an amount slightly in excess of $60,000, the qu alifi ed domestic relations order (QDRO) authorized the withdrawal of slightly less than $130,000 from Daniel's 401K. This, however, did not double his liability to Christine; the judge found, ba sed on information from an accountant, that this was the "gro ssed

- up" amount necessary to provide for any taxes, penalties, and fees from the withdrawal while netting Christine the $60,000 amount she was owed. If Daniel was desirous of avoiding this conse quence, he need only have paid the $60,000 to Christine in th e mon ths allowed him prior to entry of the QDRO. We find no abuse of discretion in this disposition.6 A

- 0412

- 18T3

attended his freshman year had been accepted, he was still required to complete two other courses to fulfill Maryland's core requirements. M atthew was allowed to participate in the May 2013 graduation proceedings, but the school would not release his diploma until the two courses were completed. Matthew completed the req uired courses at the County College of Morris (CCM) . Christine bore the
expense. Daniel asserted that he was not obligated to share in either the expense incurred for the two CCM courses or for child support accruing after the graduation ceremony at the U niversity of Maryland in May 2013 . I n his view, Matthew was then emanci p ated under the PSA definitions quoted above . In seeking Daniel's share of the CCM expenses, Christine did not seek child support relating to Matthew after May 2013. She only sought Daniel's share of the CCM expenses , which amounted to less than $1000

. I n ruling on the papers, the motion judge determined that these expenses were "reasonable and necessary in order for Matthew to complete his college requirements" and graduate from
Mar yland, concluding that Daniel should be held liable to reimburse Christi n e for half that amount

. 3

3 The record provides differing numbers for these amounts. It suffices for our purposes to n ote that the total expenditure for which Christine sought re lief w as7 A

- 0412

- 18T3

Daniel's argument is that Matthew should have been deemed emancipated in May 2013, and he should not be held accountable for his share of th is additional minor cost that accrued shortly thereafter . We agree that the obligation to pay college expenses was not so rigidly pr e scribed in the PSA or in law as to free a parent from paying a share of such an expense. Neither the child nor the parent wi lling to bear the expense need turn such square corners to

secure a n unwilling parent 's fair and equitable share of a necessary co llege
expense . Brielle

. W hen the parties entered into the PSA, Brielle was in her sophomore year at the University of Delawar e. For various reasons , she decided

– and with Daniel's encouragement

– to take a leav e of absence with the firm intention of returning to school the following Fall. The parties agreed to allow Brielle to spend time in Europe during this sabbatical ; in f act, Daniel agreed to bear one

- third of the expenses. Christine advanced the necessary funds and Daniel paid $800 toward his portion but later failed to reimburse the remaining share of slightly more than $5 00

.

less than $1000, so Daniel's share

– the sole amount in question in the disposition of the Matthew

- related claims

– was less than $500.8 A

- 0412

- 18T3

In February 2013, after Brielle returned fro m Europe, Daniel agreed to let Brielle work part

- time as an intern in California for a f ew months while she applied to other colleges. She resided in California with a cousin of Christine's, and Daniel paid a portion of her expenses. In April , she reques ted her parents' permission to complete a second internship during the summer, anticipa t ing this would enhance her employment search after graduat ion . In May, Daniel agreed to pay one

- third Brielle's expenses provided he received a sixty

- day extension
to make a payment of unpaid pendente lite support. Christine agreed and advanced all the f

unds Brielle required to stay in California; Daniel ultimately failed to reimburse his share. During the second internship , Brielle applied to and was accepted at a

num ber of colleges. Due to an omitted transcript from her application, the University of M aryland delayed her admission until January 2014, and so Brielle remained in California and took a class at UCLA. She resumed her full

- time college education at Maryla nd in January 2014, and Daniel voluntarily paid his share of her tuition and board for t he Spring 2014 semester. By motion, Daniel argued Brielle became emancipated when she took a break in her college education in 2013. We reject Daniel's argument that t he requirement in the PSA that a child be emancipated at the age of eighteen unless,9 A

- 0412

- 18T3

am o ng other things, the child is engaged in and completes "four . . . continuous academic years of college" (emphasis added), compelled a ruling that Brielle was emancipated when she took a leave of absence in January 2013 to travel abroad for a month and th e n to take two internships in California before returning to school in 2014. The break Brielle took from school was with th e consent and encouragement of both parents ; Daniel participated in Brielle's consideration of taking a leave of absence, consented t o it, knew she fully intended to return to college, approved her plan to complete the two internships in California and agr eed to contribute to the expenses incurred, was involved in Brielle's applications for returning to school in 2013, and voluntarily m ade payments toward her Spring 2014 tuition and other expenses. The judge correctly determined that Brielle had not moved beyond the sphere of her parents' influence

. See Fillipone v. Lee , 304 N.J. Super. 301, 308 (App. Div. 1997) . We agree and conclud e that i t would be inequitable for a parent

– after

a gree ing to and contributing toward a child's leave o f absence from scho ol

– to hold that sabbatical against the child, or , ultimately, against the more understanding parent who contributed mor e than a fa i r share to the remaining college expenses

. In addition , we have not viewed a brief break in a college10 A

- 0412

- 18T3

education as compell ing emancipation in all circumstances

. See Keegan v. Keegan , 326 N.J. Super. 289 , 295 (App. Div. 1999 ). Lastly, we note

– as Christ i ne argues

– that the parties , as a result of a later round of motions, entered into a consent order that declared Brielle

e mancipated as of June 1, 2016. Having consented to the entry of that order without any attempt to reserve a right to challenge the e arlier order, Daniel cannot now complain that Brielle was emancipated at an earlier date. Justin

. Unlike his siblings, Jus tin did not attend the University of Maryland but instead matriculated at Muhlenberg University. Daniel argues that what he was ord e red to pay toward Justin's education was unreasonable. We affirm the order in this regard substantially for the reasons set forth in the judge's thorough and thoughtful fifty

- one - page written opinion. We add only the following brief comments.
D evoting o n ly slightly more than two pages of legal argument to t his point, and with little specification to the record and few citations to legal authorities, Daniel poses three separate questions about the judge's determination. First, Daniel argues that the cost o f Justin's education exceeded that incurred for his si blings. Daniel claims that "nothing could be more fair and11 A

- 0412

- 18T3

reasonable tha[n] to put all three children on a similar status with respect to college costs." While it is true that the PSA exhibits a des i re that all three children be "treated fairly" in this regard, t here is nothin g about the relevant PSA provisions that limits a parent's required contribution to that which was paid for other siblings or that the obligation for a younger child is somehow

c apped at the amount expended for older children . More over, the judge conducted an evidentiary hearing about the reasonableness of the expenses and the fairness of requiring Daniel's contribution and made findings, which command our deference. See Cesare v. Cesare , 154 N.J. 394 , 412 (19 98 ) . Even if the pole star for fixing a reasonable cost is what was expended for Justin's older siblings, the judge found that the expense of sending Justin to Muhlenberg University was not significantly greater than the co s t of sending the other s to the University of Maryland when factoring in Justin 's $10,000 annual merit scholarship

. In short, f inding such a similarity in expenditures, the judge concluded that the cost for sending Justin to Muhlenberg was reasonable and
t hat it was fair and equitable to require Daniel to equ ally share in those costs

. We defer to those findings. Second, Daniel argues that the lack of a sound relationship between h e and Justin somehow excuses or limits his obligation to contribute to Justi n 's12 A

- 0412

- 18T3

education. Not so

. See Gac v. Gac , 186 N.J. 535, 546 (2006)

. In any event , the judge was justified in finding that Daniel

– not Justin

– was the cause for the rift in their relationship because Justin viewed his father as having made his mother's li f

e " a living hell ." Third, Daniel asserts that the judge was biased against him. He bases this contention on the fact that the trial judge relied on testimony that Daniel asserts never occurred. In his written opinion, the judge referred to the fact that Justin was "underst andably emotional as his father continued to badger and challenge him on cross

- examination." The judge added that, "[d]espite the level of hostility defendant created through his cross

- examination," when Justin was asked by Daniel "'Wh y do you hate me?' J ustin's honest reply was that 'I can't say I hate you.'" Daniel argues that neither the quoted question nor the quoted answer appear in the trial transcript. Our review of the transcript confirms Daniel's argument that he never asked t h at question and Jus tin never gave that answer. It may be the judge rendered his decision without the aid of a transcript and interpreted what transpired during the 158 pages (single

- spaced) of similar cross

- examination as the equivalent of the nonexisten t question and answe r he included in his written13 A

- 0412

- 18T3

decision. 4 The point of the judge's finding was that in an attempt to demonstrate through this rigorous cross

- examination that he was not the cause for the rift between the two, Daniel in fact proved exactl y why Justin was jus tified in feeling about Daniel the way that he did. Having carefully examined the entire transcript, including the cross

- examination in question, and the judge's written decision, we find absolutely no evidence of bias. Indeed, w e see too often disgruntl ed litigants hurling such accusations against our able family judges; sadly, this unsupported accusation comes from a member of the Bar who should know better. Affirmed.

4 For example, it may be that the judge was recalli ng Daniel's asking Justin: "Do you love me?," to which Jus tin res ponded, "Absolutely." That question, of course, sounds like the opposite of what the judge said in his opinion, but that actual question ("Do you love me?") was an opportunity for Daniel to elicit from his son, who was highly emotional during cross

- examin ation

– as is clear even from a reading of a transcript , let alone the judge's express findings

– to say that he hated his father. There are other examples during the lengthy cross

examinat ion that could have led the judge to mistakenly recall the quoted question and answer that never seems to have occurred . There was one exchange in which Daniel attempted to badger Justin into saying that he (Daniel) was "the least important person in our family." A lso , in response to an objection, Daniel argued to the judge that he was trying to show why Justin was "ang[ry] with me and why he ha[d] a dislike [for] me," which the judge could also have mistakenly equated with the thrust of the entire, painf ul cross

- examination, the purpose of which was to show that Justin did not like his father and that, in Daniel's view, there was no reason for such feelings. In any event, we find no significance in the judge's mis taken recollection about the cross

- examin ation.